CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ

THE FIGHT AGAINST STEREOTYPES AS AN INSTRUMENT OF EUROPEAN …

3.2 Stereotypes in the case law of the European Court of Human Rights and the EU Court of Justice In the light of these open questions, it is appropriate to seek further answers in the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). At first glance, the approach of the ECtHR and the CJEU to the issue of stereotypes is more restrained, respectively more sober than the above analyzed British case law. In the Handbook of European Anti-Discrimination Law published by the EU Fundamental Rights Agency (FRA) and the ECtHR in 2010, 22 the term stereotype does not appear a single time. In only two places, but not in the context of specific cases of discrimination, the 2010 Handbooks mentions the term prejudice. In one place, the Handbook analyzes the admissibility of the so-called positive discrimination, resp. affirmative action, and concludes that such measures are an acceptable means of addressing prejudices. However, the authors of the Handbook seemed to realize that such measures are essentially based on a stereotype as they view a certain group as vulnerable without considering the circumstances of each individual case. Therefore, the authors added that the basis of affirmative action is not prejudice against particular groups, but a “benevolent aim”. In other words, the moral principle is to bridge logical contradictions. In the second place, the Handbook recalls that the intention of the perpetrator is irrelevant, because, in the light of European anti-discrimination law, the existence of differential treatment on the basis of a prohibited ground is sufficient. Therefore, according to the Handbook, “there is no need to prove that the perpetrator is motivated by prejudice”. Unlike its predecessor, the new revised version of the Handbook of 2018 23 repeatedly mentions the issue of stereotypes, however, almost exclusively in relation to gender stereotypes. Only in the context of hate speech, the fight against stereotypes is used in favor of other social groups and minorities. With a view to education, the Handbook recalls the need to eliminate stereotypes and prejudices. It is significant that, in this context, the Handbook relies almost exclusively on the opinions of the UN human rights bodies and the European Committee of Social Rights. The CJEU’s case law is not mentioned even once. As regards the case law of the ECtHR, the Handbook refers to the well-known case of SAS v. France 24 concerning the prohibition of veiling under French law. It should be added that the case law of the European courts is, after all, a little richer than the Handbook suggests. Indeed, the ECtHR and the CJEU have tackled the problem of stereotypes in several cases. 3.2.1 The European Court of Human Rights As regards the above-mentioned judgment in SAS v. France of July 2014, it should be added that in this case it was mainly the complainant and various human rights organizations, speaking on her support, who made an explicit reference to the issue of stereotypes. The ECtHR itself did not want to give a definitive statement on whether legislation prohibiting veiling is desirable. Nevertheless, the Court considered it necessary to emphasize that the legislative process can contribute to the consolidation of stereotypes in such situations in 22 The “Handbook on European Non-Discrimination Law” is available at https://fra.europa.eu/sites/default/files/ fra_uploads/1510-FRA-CASE-LAW-HANDBOOK_EN.pdf. 23 The new 2018 version of the “Handbook” is available at https://fra.europa.eu/sites/default/files/fra_uploads/ fra-2018-handbook-non-discrimination-law-2018_en.pdf. 24 S.A.S. v. France [2014] ECHR 695.

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